Continuing the trend of fantasy sports litigation, Yahoo! Inc., has filed a lawsuit seeking declaratory judgment against the defendants National Football League Players Association, Inc., and the National Football League Players Incorporated (collectively hereinafter “NFL Players”).

The NFL Players Association acts as the exclusive collective bargaining representative for active players in the NFL. The players assign their rights to the Association which, in turn, grants NFL Players Inc. exclusive use of the Group Licensing Rights. Yahoo! provides NFL fantasy football game services to participants throughout the United States. This includes tracking, compiling and posting publicly available NFL player statistics and information to aid game participants in making decisions.

Prior to the upcoming 2009/2010 season, Yahoo! had a licensing agreement with NFL Players to pay for using the statistics as well as “names, likenesses (including, without limitation, numbers), pictures, photographs, voices, facsimile signatures and/or biographical information” of NFL players. However, the license expired in March 2009 and was not renewed. On April 28, 2009 the same court hearing this case decided in CBS Interactive, Inc. v. Nat. Football League Players Inc., 70:08-cv-0597-ADM-SRN (D. Minn.), that the provider of a fantasy football game did not require a license from NFL Players to use player names, statistics, and other information in operation of the game. After that decision, Yahoo! contacted NFL Players to get confirmation that it would not be sued for similarly using the statistics but NFL Players refused to provide confirmation since they were appealing the court’s ruling.

Yahoo! followed up on June 1, 2009 by filing the present suit in which it seeks declaratory judgment (a declaratory judgment action is one filed by someone who fears getting sued by another on an issue, and doesn’t want to sit around waiting to get sued – they file a suit of their own to clear the air and resolve the issue) on three claims:

Yahoo!’s actions in operating its fantasy football league did not violate any publicity rights owned or controlled by NFL players;

If Yahoo!’s actions did violate those rights, the First Amendment supersedes that right of publicity; and

If Yahoo!’s actions did violate those rights, federal copyright law preempts the trademark right or right of publicity by dedicating information used in a fantasy sports games business to the public.

This suit seems almost identical to CBS Interactive mentioned above, as well as C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), which dealt with similar publicity issues in fantasy baseball. In both of these other declaratory judgments, the courts found that even if the plaintiff did violate defendants’ publicity rights, the plaintiff enjoyed a First Amendment right to use the publicly available players’ names and statistics that prevailed over any right of publicity. To escape this precedent set in the 8th Circuit, it seems possible that NFL Players may attempt to transfer venue to the Southern District of Florida as the defendants attempted in CBS Interactive (to no avail). Why Florida? In Gridiron.com, Inc. v. Nat’l Football League, Player’s Ass’n, Inc., 106 F. Supp. 2d 1309, 1315 (S.D. Fla. 2000), which appears to be the only other case addressing publicity rights and the First Amendment as they relate to the fantasy sports industry, the court rejected the plaintiff’s argument that a fantasy football provider had a First Amendment right to use players’ names and statistics without a license. This kind of split among jurisdictions may result in a trip to the Supreme Court, so we’ll keep an eye out …
A full version of the complaint can be found here.

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